Since 1 September 2012, personal data for purposes of advertising and address trading may in principle only be processed or used with the consent of the persons concerned. The declaration of consent must be clearly highlighted in contracts. The transitional period for old data collected before 1 September 2009 is now expiring.
However, there are exceptions to this consent requirement:
- Companies and other non-public bodies may continue to use certain personal data (name, title, academic degree, address, year of birth, occupation, industry or business name) for advertising without consent, as well as the affiliation to a group of persons (for example customers, club members or cash payers). However, this only applies to advertising for its own offers if the company has received the data from the customer itself or has taken it from public directories, as well as for profession-related advertising to the professional address and for advertising for donations.
- Advertising for third-party offers is also permitted without consent if it is clearly recognisable to the person concerned where his or her data is stored and which body is carrying out the advertising.
- Companies are allowed to advertise with data received from address traders if they record the origin of the data and can provide information about it. In addition, it must be clear from the advertisement which agency collected the data for the first time.
In the aforementioned cases, the data subjects may also object to the use or transmission of their data. They shall be informed of their right to object on the advertising letter.
Already three years ago, the legislator amended the provisions of the Federal Data Protection Act on the use and disclosure of personal data for advertising purposes. However, for data collected before the new regulation came into force on 1 September 2009, the old legal situation initially continued to apply. Since the transitional regulation expires on 31 August 2012, only the new law applies from that date.
Source: Press release of the Federal Commissioner for Data Protection and Freedom of Information
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law
E-mail: info@goldberg.de
